The blog of ObiterJ - responsible and sometimes critical comment on legal matters of general interest. This blog does not offer legal advice and should not be used as a substitute for professional legal advice.
'The life of the law has not been logic; it has been experience. The law embodies the story of a nation's development...it cannot be dealt with as if it contained the axioms and corollaries of a book of mathematics' - (Oliver Wendell Holmes - 1841 to 1935). Pro Aequitate Dicere

Tuesday, 24 January 2017

Brexit litigation ~ Supreme Court gives judgment

Tuesday 24th January 2017 - the Supreme Court of the UK handed down judgment in the Miller and Dos Santos litigation and also in two references from Northern Ireland. This post merely notes the judgments and fuller comments will follow.

The outcome is that legislation is required before notice may be given.

The court was NOT concerned in any way with the political question of whether Brexit is desirable. The court has answered the questions of LAW raised.

It was assumed by all parties to the case that notice under Article 50 may NOT be unilaterally withdrawn by the UK. Further common ground was that a notice under Article 50 could not be given in qualified or conditional terms. It was the Secretary of State's case that, even if the common ground was mistaken, it would make no difference to the outcome of the proceedings. The court was therefore content to proceed on that basis without expressing any view of its own on those points.

There is NO appeal to any other court from this judgment. The court was deciding questions of national law. No point of European Union law was referred to the Court of Justice of the EU.

"Does the Government have power to give notice pursuant to Article 50
of the Treaty on European Union of the United Kingdom's intention to
withdraw from the European Union, without an Act of Parliament providing
prior authorisation to do so?"

Decision:

By a majority of 8 to3 the court held that Ministers may not use prerogative power to give notice under Article 50 without the authority of an Act of Parliament. This is because withdrawal from the EU will remove a source of legal rights and that must be clearly authorised by Parliament. The Referendum Act 2015 did not state what was to happen in the event of a leave vote.

An Act of Parliament is required to authorise ministers to give Notice of the decision of the UK to withdraw from the European Union. Each of the dissenting justices (Lords Reed, Carnwath and Hughes) gives a separate judgment.

Does any provision of the Northern Ireland Act 1998 ('the 1998 Act')
read together with the Belfast Agreement and the British-Irish
Agreement have the effect that an Act of Parliament is required before
notice can validly be given to the European Council under Article 50(2)
of the Treaty on the European Union?

If the answer to question 1 is 'yes', is the consent of the Northern
Ireland Assembly required before the relevant Act of Parliament is
passed?

If the answer to question 1 is 'no', does any provision of the 1998
Act read together with the Belfast Agreement and the British-Irish
Agreement operate as a restriction on the exercise of the prerogative
power to give notice to the European Council under Article 50(2) TEU?

Does section 75 of the 1998 Act prevent the prerogative power being
exercised to give notice to the European Council under Article 50(2) TEU
in the absence of compliance by the Northern Ireland Office with its
obligations under that section?

Decision:

On the devolution issues, the court unanimously concludes that neither section 1 nor section 75 of the NIA is of assistance in this case, and that the Sewel Convention does not give rise to a legally enforceable obligation.

The government is NOT legally compelled to consult the devolved institutions. The devolution Acts do not REQUIRE membership of the EU. The policing of the SEWEL CONVENTION is NOT a matter for the courts.

Does the triggering of Article 50 of the Treaty on European Union by the
exercise of the prerogative power without the consent of the people of
Northern Ireland impede the operation of section 1 of the Northern
Ireland Act 1998?

Decision:

On the devolution issues, the court unanimously concludes that neither section 1 nor section 75 of the NIA is of assistance in this case, and that the Sewel Convention does not give rise to a legally enforceable obligation.

In that post, only 4 days after the referendum, I argued that Article 50 TEU made a clear distinction between the decision to leave and the notification. It was therefore necessary to be clear how the decision was made in accordance with UK constitutional requirements. It appeared at the time that the referendum result could not amount to a decision taken in accordance with constitutional requirements because the referendum was not legally binding on anyone to do anything. Parliament could have legislated to make it legally binding but had not done so. It followed from this that, in order to achieve a decision made in accordance with constitutional requirements, an Act of Parliament was necessary. Notice to the EU could follow once the Act was in place.

The Brexit litigation concentrated on the power to give notice rather than on whether a legally binding decision had actually been made. Further, when the appeal was heard in the Supreme Court, devolution issues had been raised by Northern Ireland.

The Brexit litigation (including the appeal) proceeded on the basis of an agreed position that Article 50 notification could not be unilaterally revoked by the UK. That question remains unresolved.

The post of 27th June also has links to articles both for and against the view that legislation was required.

Marston Moor was the largest battle ever fought in England. It was a victory for Parliamentary forces in the civil war. The eventual result was that the supremacy of Parliament over the Crown was established.